FEDERAL COURT OF AUSTRALIA Applicant A85 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 531 Migration Act 1958 (Cth) s 36(2), s 91R Administrative Decisions (Judicial Review) Act 1977 (Cth) Plaintiff S157/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 211 CLR 476; [2003] HCA 2 applied Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 applied Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 applied Craig v South Australia (1995) 184 CLR 163 applied Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 applied Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 applied Minister for Immigration & Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 applied Minister for Immigration & Multicultural & Indigenous Affairs v Haji Ibrahim (2000) 204 CLR 1 applied SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1315 cited Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 applied Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 cited Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 referred to APPLICANT A85 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, DR IRENE O'CONNELL, MEMBER, REFUGEE REVIEW TRIBUNAL & THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL S 656 of 2003 MANSFIELD J 7 MAY 2004 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 656 OF 2003 BETWEEN: APPLICANT A85 OF 2003 APPLICANTS AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT DR IRENE O'CONNELL, MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT JUDGE: MANSFIELD J DATE OF ORDER: 7 MAY 2004 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. A writ of certiorari be issued, directed to the second respondent, removing her decision of 16 May 2002 in this matter into this Court for the purpose of quashing it. 2. The decision be quashed. 3. A writ of mandamus be issued, directed to the Refugee Review Tribunal, requiring it to hear and determine the matter the subject of the decision, according to law. 4. The first respondent pay to the applicants costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 656 OF 2003 BETWEEN: APPLICANT A85 OF 2003 APPLICANTS AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT DR IRENE O'CONNELL, MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT JUDGE: MANSFIELD J DATE: 7 MAY 2004 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The applicants are mother and daughter. They are citizens of India and are Muslims. They arrived in Australia on 17 June 2000. Within a few days they applied for a protection visa under the Migration Act 1958 (Cth) (the Act). On 20 October 2000 a delegate of the respondent refused to grant to them the visa for which they had applied. That decision was affirmed by the Refugee Review Tribunal (the Tribunal) on 16 May 2002. 2 On 18 February 2003, the applicants applied in the High Court of Australia for writs of mandamus, prohibition and certiorari in respect of the Tribunal's decision. That application was remitted to this Court by order of 11 June 2003 for further hearing and determination. It is common ground that the application can succeed only if the applicants are able to demonstrate jurisdictional error on the part of the Tribunal in the making of its decision: Plaintiff S157/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 211 CLR 476; [2003] HCA 2. 3 The Tribunal's findings and reasons are set out quite shortly in its reasons for decision in the following terms: 'The applicants' claims may be summarised as follows. The applicants are Muslims and fear that they may face harm from Hindu extremists if they return to India. The applicants claim that their home and family business were destroyed in a fire. They also claim that they faced harassment from Hindus when walking in the streets. The Tribunal finds as follows. The Tribunal does not accept that when the applicants' home was damaged by fire in 1998 that this incident was instigated by reason of religious antipathy. The Tribunal does not accept this claim for the following reasons. The applicants in the hearing stated that they had no idea who had started the fire but they merely surmised that it was instigated by Hindus against Muslims. The applicants further stated that they were in fact renting an apartment in a block of flats in which both Hindus and Muslims lived and that the block of flats was in fact owned by a Hindu. The Tribunal considers it implausible that Hindus wishing to harm Muslims would deliberately light a fire that destroys the property of a Hindu and the homes of Hindus. The Tribunal accepts the applicants' claim that when walking in the street they faced taunts from Hindus and that they feared that they would be robbed. The Tribunal however does not accept that the prospect of robbery or taunting involves serious harm amounting to persecution within the meaning outlined above at page three of this decision. The Tribunal notes the country information from the UK Home Office cited above at pages 7-8 which indicates that there is religious tension in India between Hindus and Muslims that has resulted in outbreaks of violence. The Tribunal does not accept that the applicants experienced any harm in any religious riots in the past. The Tribunal does not accept that the applicants experienced any harm in any religious riots in the past. The Tribunal does not accept this because the applicants in the hearing were unable to specify any harm that had befallen them and unable even to specify the dates in which riots between Muslims and Hindus had occurred. The Tribunal notes that neither the applicant daughter nor the applicant mother have claimed to have a profile or membership of a group which would make them a target of Hindu extremists. The applicants only claim that they fear that in the event of any future outbreak of violence they may be harmed. Given that the applicants do not have a profile and that they live in a major city of India – that of Mumbai, and that they have not suffered as a result of previous riots the Tribunal does not accept that there is a real chance that the applicants face harm in terms of persecution should there be rioting between Muslims and Hindus in the future. Accordingly the Tribunal is not satisfied that the applicants have a well-founded fear of persecution on their return to India.' Consequently, the Tribunal was not satisfied in terms of s 36(2) of the Act that the applicants are persons to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (the Convention). They did not therefore satisfy the criterion for eligibility for the visa sought as specified in that sub-section. Section 65 directed the Tribunal in the circumstances to affirm the decision not to grant the protection visas. 4 The application made by affidavit of a solicitor specified six grounds upon which jurisdictional error was asserted. They appear to be drawn by rote from those grounds available under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), rather than by reference to, or as a result of, careful consideration of the Tribunal's reasons. Shortly before the hearing, the solicitors on the record for the applicants changed. The matters argued on the hearing did not correspond with the grounds specified in the application. 5 There were, as I perceived it, four matters which, at the hearing were said to involve jurisdictional error on the part of the Tribunal. 6 The first was that the Tribunal's decision was so unreasonable that no reasonable decision-maker could have come to it. Jurisdictional error may be established if such a conclusion is reached because it is then inferred from the nature of the decision that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test: see Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 62, 67, 76, 90 – 91. However, I do not consider the foundation for the proposition is made out. It is asserted that the Tribunal unreasonably rejected the hypothesis that the applicants' home (from which they also carried out their business) was destroyed by fire in 1998 by reason of Hindu antipathy to them for reasons of their religion. The Tribunal is asserted to have unreasonably failed to consider an alternative theory that a Hindu extremist deliberately lit the fire, not caring that it would financially hurt not simply the applicants or other Muslims who lived in the apartment block, but also other Hindus unassociated with such persons. However, although the applicants gave evidence at a hearing before the Tribunal, they did not identify any particular features of that fire from which it might have been inferred that the fire was directed at them or at other Muslims living in the apartment block. The evidence recorded by the Tribunal in the Tribunal's reasons (which is the only record of the hearing available to the Court) does not suggest any such selectivity, and indeed it suggests that it was the whole of the apartment block which was destroyed. In my view, particularly bearing in mind that the applicants were merely surmising that the fire was instigated by Hindus against Muslims, and there was no other basis for attributing its cause to Hindu extremists, the Tribunal's conclusion that it was not satisfied that the fire was instituted by Hindus wishing to harm Muslims was not one which leads to the conclusion that the Tribunal applied the wrong test, or was not satisfied in respect of the correct test, in deciding about the motivation behind the fire. Its decision on the topic was not so unreasonable that no reasonable decision-maker could have reached it. 7 The second ground of alleged jurisdictional error is that which appears in the third paragraph of the Tribunal's reasons quoted above. In particular, it is contended that the Tribunal either misunderstood or misapplied the law in considering the claim of the applicants that they had a well-founded fear of persecution from Hindus by reason of the treatment which they received when walking in the street. That is, it failed to apply itself to the question which the Act prescribes, or misunderstood that the nature of the opinion which it was to form: Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 208 – 209; Craig v South Australia (1995) 184 CLR 163 at 179. 8 It is first necessary to discern precisely what it was that the Tribunal found. Counsel were agreed that, to address the applicant's complaints, it was necessary for the Tribunal to consider firstly whether the applicants have a fear of persecution, that is of adverse conduct genuinely felt, and secondly that the fear is 'well-founded' as explained for instance in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 (Chan); Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 (Haji Ibrahim). Then it is necessary that the harm in respect of which there is a well-founded fear is of sufficient seriousness to amount to persecution, including having regard to the provisions of s 91R of the Act. Fourthly it is necessary for the decision-maker, in the present circumstances, to determine that the persecution is tolerated by, or uncontrolled and uncontrollable by, the authorities of India because the applicants did not claim that the Indian authorities themselves were the source of the threat of robbery. It is not necessary that the well-founded fear of harm be as a consequence of the direct agency of governmental authorities, so long as governmental authorities have failed and are unable to protect the applicant from the serious harm which is feared: see Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 (Applicant A) at 233. In Minister for Immigration & Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 (Respondents S152/2003), Gleeson CJ, Hayne and Heydon JJ explained further what was meant in Applicant A on that matter. Their Honours at [26] said: 'No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence. Day by day, Australian courts deal with criminal cases involving violent attacks on person or property. Some of them may occur for reasons of racial or religious intolerance. … [the] state was obliged to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system.' 9 It is submitted that the Tribunal erred in not accepting that 'the prospect of robbery or taunting' involves serious harm amounting to persecution. Counsel for the respondent contended that the finding of the Tribunal did not involve a finding that there is a well-founded fear of harm from robbery by reason of the applicants' Muslim religion, or by virtue of them being single unaccompanied female Muslims in a predominantly Hindu society. It is contended that the Tribunal's reasons, properly understood, amounted to a finding that, although the applicants might be exposed to the threat of robbery or taunting, the threat was not real so as to give rise to a well-founded fear of robbery when walking in the streets of their area. 10 In my judgment, that is not so. 11 The Tribunal accepted the claim that, when walking in the street, the applicants faced taunts from Hindus and that they feared they would be robbed. The Tribunal described that fear as involving 'the prospect of robbery or taunting'. The prospect of robbery was not accepted as involving 'serious harm amounting to persecution'. The Tribunal's reference to page three of its decision is a reference to what it describes as the four key elements of the Convention definition of a refugee. It is necessary to refer to them because, subject to consideration of s 91R of the Act, the criterion upon which the visa was rejected as specified in s 36(2) of the Act relevantly and in substance for present purposes invoked the definition of refugee in Art 1A(2) of the Convention. Those four elements are that the applicant be outside his or her country of nationality, that the applicant genuinely fear persecution, that the persecution be for one or more of the reasons enumerated in the Convention definition, and that the fear be 'well-founded'. Page three of the Tribunal's decision then discusses what amounts to a subjective fear of persecution. On that topic, it discussed both s 91R of the Act, (the requirement that the feared harm be 'serious'), and secondly that the feared harm be from governmental authorities, or by reason of the tolerance of the government in relation to private conduct, or due to the government's inability to control private conduct. The Tribunal specifically identified the issue as being whether the feared harm was serious, using the expression in s 91R of the Act. As its reasons indicate, with respect to that complaint, the applicants failed because they did not accept that the harm which they feared was serious. The Tribunal did not need to address whether the fear was well-founded, or whether the cause of the fear was Convention related, or whether it was in the context where the government was unable or unwilling to do anything about it. Those matters were addressed in the course of evidence but were not the subject of findings. 12 For those reasons, in my judgment, the Tribunal indicated that it accepted that the applicants have a genuine fear of being robbed by reason of their religion, but the Tribunal formed the view that such conduct, if it eventuated, would not amount to serious harm amounting to persecution. 13 I consider that decision by the Tribunal must involve an error of law on the part of the Tribunal, because it must have failed to apply itself to the question which the Act prescribes, or it must have misunderstood the nature of the opinion which it was to form. Counsel for the respondent contended (on the basis of instructions from the respondent) that a person (in this instance including a 58 year old woman) who is vulnerable to being robbed by Hindu persons when she walks down the street by reason of her religion does not thereby suffer harm serious enough to amount to persecution. In my judgment that must be wrong. 14 In Haji Ibrahim, McHugh J after referring to his earlier reasons for judgment in Chan at 430 said at 20 – 21: 'Given the objects of the Convention, the harm or threat of harm will ordinarily be persecution only when it is done for a Convention reason and when it is so oppressive or recurrent that a person cannot be expected to tolerate it. This accords with the discussion of what constitutes a "well-founded fear of persecution" in par 42 of the Handbook On Procedures And Criteria For Determining Refugee Status issued by the Office of the United Nations High Commissioner for Refugees: "In general, the applicant's fear should be considered well-founded if he can establish, to a reasonable degree, that his continued stay in his country of origin has become intolerable to him for the reasons stated in the definition, or would for the same reasons be intolerable if he returned there." (Emphasis added) Dr Hathaway in his book The Law of Refugee Status thought that the Canadian Immigration Appeal Board had "succinctly stated the core of the test" of persecution when it said that "[t]he criteri[on] to establish persecution is harassment, harassment that is so constant and unrelenting that the victims feel deprived of all hope of recourse, short of flight, from government by oppression".' 15 Although his Honour was in dissent as to the outcome in that case, I do not think what he there said was the subject of disagreement on the part of other judges of the Court. His Honour later said at 21 that persecution for the purposes of the Convention is conduct 'which is so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned'. 16 Section 91R(1) of the Act provides: 'For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct.' That provision has the effect of qualifying or limiting, to the extent that it does, the meaning of 'persecution' in Art 1A(2) of the Convention. See e.g. per Lander J in SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1315 at [95]. Section 91R(2) then gives instances of serious harm for the purposes of s 91(1)(b). It expressly does not limit what is serious harm for the purposes of s 91R(1)(b), but the instances include a threat to the person's life or liberty, significant physical harassment of the person, and significant physical ill-treatment of the person. 17 I have found that the Tribunal accepted that the applicants, by reason of their religion, fear and face the prospect of being robbed by Hindus in India when walking down the street. The question is then whether its conclusion that such a prospect does not amount to serious harm is one which involves an error of law on the part of the Tribunal. 18 In my judgment, once the Tribunal accepted that the applicants, who happen to be female Muslims and in one case aged 58, fear being robbed by Hindus in the area and face the prospect of being robbed when walking in the streets by reason of their religion, the Tribunal must have fallen into some error of law in not recognising that as serious harm for the purposes of s 91R(1) and (2) and Art 1A(2) of the Convention. Indeed, to state the proposition is to illustrate the point. The prospect of a 58 year old woman being robbed by Hindu persons when she walks down the street, which would presumably involve the risk of some significant physical contact, seems to me to fall fairly and squarely within the concept of serious harm. It is unclear how the Tribunal made the error which it made. I have rejected the submission that it concluded that there was no real risk of robbery. Had that been a step it had taken, one would have expected the Tribunal to express it. In its analysis of the law, it recognised that that was a step which is required by it to be taken. I can only infer that the Tribunal confused or misapplied the question dictated by s 36(2) of the Act by requiring there to be actual serious harm amounting to persecution before persecution for the purposes of s 91R can be established, rather than the prospect of serious harm. Such a conclusion is erroneous. 19 The third ground of review is that the Tribunal erred in having regard to the fact that the applicants had not experienced any harm in religious riots in the past as part of the reason for concluding that the applicants did not have a fear, or at least a well-founded fear, of persecution by reason of being targeted by Hindi extremists during rioting between Muslims and Hindus in the future. In my judgment the Tribunal was entitled to have regard to past history in addressing that issue, bearing in mind the backdrop of religious tension in India between Hindus and Muslims which existed in the past, and which has resulted in outbreaks of violence. In Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, the High Court at 575 expressly made it plain that in determining whether there is a real risk of persecution for a Convention reason in the future, what has happened in the past may be informative to that judgment. That is the way in which the Tribunal regarded the evidence of what had happened in the past. In my view it was appropriate for it to have done so. 20 Finally, it was contended that the Tribunal committed jurisdictional error by failing to appreciate that the applicants made a claim of persecution for reasons of their membership of a particular social group, namely 'unaccompanied single Muslim women in India'. Counsel for the respondent acknowledged that, if such a claim were made, it was necessary for the Tribunal to have addressed it: see Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802. However, I accept the submission of counsel for the respondent that the claim as now expressed was not made either expressly, or by implication in a context in which the Tribunal ought to have appreciated that it was made. The Tribunal has recorded the applicants' claim as stated in the application for a protection visa and during the course of the hearing before the Tribunal. It is plain from that material that they claimed to have a well-founded fear of persecution by reason of their religion. They did not separately identify a claim to be members of a particular social group and to fear persecution for that reason. I do not regard anything which they put to the Tribunal as requiring it separately to have addressed a claim on that basis. Accordingly, I reject that submission. 21 For the reasons given, in my judgment the Tribunal fell into error of a jurisdictional nature and its decision should be set aside. Counsel for the respondent acknowledged that, in that event, it was appropriate to remit the matter to the Tribunal for re-hearing and determination. I note that, at a re-hearing, there are obviously significant obstacles confronting the applicants which have not been decided by the Tribunal. Assuming the Tribunal again finds that the applicants face the prospect of robbery by Hindus when walking down the street by reason of their religion, they would also need to satisfy the Tribunal that the harm has an official quality, that is that the Indian government has failed to or is unable to protect them from such conduct in the sense described by the High Court in Respondents S152/2003. It is by no means clear that that is the case. I note also that the delegate of the respondent, when first rejecting the application, decided that the applicants could relocate to another part of India, applying the relocation principle as explained in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437. However, as it is by no means certain that the applicants will not be able to overcome those obstacles, in my view the application should succeed. 22 I propose to make orders to quash the Tribunal's decision of 16 May 2002 and to secure the rehearing by the Tribunal of the review of the decision of the delegate of the first respondent made on 20 October 2000. I have confidence that it is unnecessary to prohibit the first respondent from acting upon or giving effect to the decision of the Tribunal of 16 May 2002. The first respondent should pay costs of the application to the applicants. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 7 May 2004 Counsel for the Applicants: M Newman Solicitor for the Applicants: Newman & Associates Counsel for the Respondents: K Tredrea Solicitor for the Respondents: Sparke Helmore Date of Hearing: 5 April 2004 Date of Judgment: 7 May 2004